By Dr Przemysław Tacik, Assistant Professor, Institute of European Studies, Jagiellonian University
Protests focusing on the legality of abortion laws swept across Poland in late October and early November 2020. Triggered by a ruling of the Constitutional Court on October 22nd which abrogated one of the premises for legal abortions, the protests swiftly escalated to a pan-national scale and unleashed the social discontent which had accumulated during the Law and Justice-led administration. This turned into the largest expression of disappointment with the ruling coalition since it came to power in 2015. Although the protests eventually abated, they seem to have established a lasting political front that is capable of rekindling dissent if the right-wing parliamentary majority seeks to further infringe on the human and civic rights of the Polish people. The manifestations, organised and articulated by the ‘All-Poland Women’s Strike’ group, produced their own symbolism – most importantly, the lightning bolt logo – and cultural codes that have proved particularly important to the identity-building of the youngest generation of Polish women, men, and non-binary persons.
The Troubles of Counter-Majoritarianism in Times of Populism
The recent protests embody the intersection of several historical tendencies that are not unique to Poland: an escalation of the conservative backlash against liberal democracy, the instrumentalisation of the highest judiciary body for political and ideological purposes, and the rise of populist rule. Furthermore, in Poland the interplay of these processes are conditioned by the strong socio-political position of the Catholic Church.
Historically speaking, the legality of abortion in Poland has been a direct derivative of ideological leadership. After World War II, abortion was generally prohibited under Stalinism, which waged a biopolitical struggle for repopulation. After the thaw in the socialist regime in 1956, however, abortion was legalised on demand.
Nonetheless, after the fall of socialism conservative views began to affect legal approaches to the issue. In 1993, a law which stipulated three premises for legal abortion was adopted: the risk to the mother’s life due to pregnancy, serious malformation of the foetus, or the pregnancy being a result of a crime such as rape or incest. Despite huge social protests at the time, these three premises constituted a long-standing resolution of the case.
In 1996, the left-wing ruling coalition added a fourth premise: a difficult personal situation of the woman. From that moment, the battlefield shifted from Parliament to the courts. In 1997, the Constitutional Court ruled the newly added premise as unconstitutional and violated the legal protection of life. Contrary to the jurisprudence of the European Court of Human Rights, the Constitutional Court did not balance the protection of the foetus with rights of the mother.
Until 2020, the three-pronged legal permissibility of abortion remained in force despite numerous unsuccessful attempts – from both sides of the conflict – to modify it. The option of reusing the Constitutional Court as an instrument of imposing an ideological amendment once again appeared as a promising avenue for the ruling majority. By doing so, however, it openly raised the problem of counter-majoritarianism, or non-elective judicial bodies making decisions against the majoritarian will of the citizens.
This time, however, the situation was structurally different than in 1997. As a result of a long process, in 2015-2016 the Constitutional Court in Poland had lost its independence from the ruling majority and became practically intercepted by the governing party, which was achieved by the breaching of several constitutional norms. Most important, three judges who had been legally elected by the previously ruling party were denied their status and were replaced by three new Law and Justice loyalists. In 2016 the new President of the Court was appointed in breach of the nomination procedure. The nominations of active Law and Justice politicians to the court demonstrates its transformation into an effective instrument of the ruling party.
Fighting a Pseudo-Judicial Decision
In this context, it was clear that the ‘ruling’ of October 22, 2020, was a direct expression of the political will of the ruling majority poorly veiled by semblances of judicial independence. Moreover, due to the participation of three illegally elected judges, its decision was legally invalid. Nonetheless, since there is no higher institution in the Polish legal system that could declare it as such, the ‘ruling’ entered into force after its publication. This, however, was once again illegally postponed until January 27, 2021, in order to wait out the protests, after which a new wave of protests rekindled.
With regards to its substantive content, the ruling provides a far-fetched and biased interpretation of the Polish Constitution. Trying to shield the decision behind purely normative premises, it attempts to argue that it does not refer to any philosophical or ethical conceptions of human life, but instead tries to uphold the consistent values of the Polish Constitution. In doing so, it does not refer to balancing the rights of the foetus and rights of the mother, which is a common standard under the European Convention on Human Rights, but instead argues that giving birth to a child with disabilities does not in itself clash with the mother’s rights or interests.
This political decision cloaked in the garb of normative arguments, takes on a different meaning when confronted with social reality. Approximately 97 percent of legally conducted abortions in Poland had been legitimised with the 1996 amendment which was repealed by the Constitutional Court. After its ‘ruling’, the availability of legal abortion has been therefore drastically reduced, and women are forced to give birth to foetuses with any kind of impairment, including the most serious ones such as acephalia.
In other words, if the foetus is unable to live independently from its mother and will inevitably die after birth, abortion remains illegal and the mother is forced to carry the baby full-term, in order to give birth to a dying or already-dead foetus. Although the Constitutional Court has attempted to substantiate its decision with purely normative arguments, the reasons for it were clearly religious. A few years before the decision, the chairman of the Law and Justice party, Jarosław Kaczyński, stated in an interview that he believed in the illegality of abortion in such cases in order to ‘let children be baptised’.
The scale of the protests was undoubtedly caused not only by the clear infringement of women’s reproductive rights but also by relegating a purely political decision to the Constitutional Court. Were it valid, its decision could not be modified unless the Constitution is amended, which freezes the near-total ban on abortion. Consequently, the Polish populist governmentality has exacerbated the problems of counter-majoritarianism. This Polish context has added its own experience of the interception of the Constitutional Court by the ruling majority. The president of the Court does not even pretend to disguise her close personal relationship with Mr. Kaczyński. The decisions of the Court are quite clearly an extension of the current will of the party and have become a means of perpetuating the political decisions of the ruling majority.
Towards the Future: The Legacies of the Protest
As of April 2021, there are no longer continuous protests against the decision of the Constitutional Court. Nonetheless, the social energy produced during these protests has not dissipated. On the one hand, it was channelled into the organisational work of the Women’s Strike and other similar organisations. On the other, the social capital amassed during the October/November and January events will definitely have a bearing on future political processes in Poland. It triggered new awareness of women’s rights, accelerated secularisation (especially in the younger generation), and fuelled a craving for democracy at all levels. The protest-related symbolism and imagery became an identity token for many teenagers and twenty-somethings. Yet the path from this transformation to actual political change is long and rocky. Whatever political force will come to rule after the current populist right-wing government, it will face the great challenges of how to reinstate rule of law and offer transitional justice under the demanding circumstances of an unending cultural war.
Przemysław Tacik is an Assistant Professor at the Institute of European Studies of the Jagiellonian University in Krakow, Poland, and Director of the Nomos Centre for International Research on Law, Culture, and Power. A philosopher, lawyer, and sociologist, he holds PhDs in philosophy (2014) and international law (2016). In his academic work, he combines both philosophical and legal perspectives, attempting to approach them from an interdisciplinary angle. Dr Tacik has authored four books as well as over forty articles and translated one volume of poetry (from French to Polish). His forthcoming book is: A New Philosophy of Modernity and Sovereignty: Towards Radical Historicization (Bloomsbury 2021).